GLACIER REFRIGERATION P.LTD, MUMBAI V. ITO WD 9(3)(4), MUMBAI

ITA 2334/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4568 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V S JADHAVDR
• Assessee Lawyers: N K ARORA
• Keywords: Depreciation; Opportunity of being heard; Unabsorbed depreciation

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.2334/MUM/2015 ASSESSMENT YEAR: 2011-12 M/S GLACIER REFRIGERATION PVT. LTD. 9A/108, 1 ST FLOOR, VRINDAVAN CHS, SHASTRI NAGAR, BEHIND VIBGYOR SCHOOL, GOREGAON (W), MUMBAI-400104 / VS. ITO, WARD-9(3)(4), (EARLIER WARD: 8(1)(4) AAYAKAR BHAVAN, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO. AACCG1819Q $ % & / ASSESSEE BY SHRI N.K.ARORA $ % & / REVENUE BY SHRI V.S. JADHAV-DR / DATE OF HEARING 14/01/2016 & / DATE OF ORDER: 18/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 08/12/2014 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTA INS TO NOT ALLOWING SET OFF OF THE BROUGHT FORWARD BUSINES S LOSS ITA NO.2334/MUM/2015 GLACIER REFRIGERATION PVT. LTD. 2 AND UNABSORBED DEPRECIATION LOSS OF RS.5,34,027/- OF ASSESSMENT YEAR 2009-10 AGAINST THE PROFIT OF A.Y. 2011- 12 AND FURTHER NOT ALLOWING PROPER OPPORTUNITY OF B EING HEARD. 2. AT THE TIME OF HEARING, AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE, SHRI N.K.AROARA, CONTENDE D THAT TRUE FACTS COULD NOT BE EXPLAINED BY THE LD. COUNSE L FOR THE ASSESSEE DUE TO CLERICAL MISTAKES OCCURRED IN THE F ACTS. THE ASSESSEE ALSO FILED CERTAIN DOCUMENTS, WHICH WE RE CLAIMED TO GO TO THE ROOTS OF THE ISSUE. IT WAS PRA YED THAT IF OPPORTUNITY IS GIVEN, THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE ITS CLAIM. ON THE OTHER HAND, SHRI V.S.JADHAV, LD. DR, CONTENDED THAT THE EITHER THE I NTEREST OF THE REVENUE MAY BE SAFEGUARDED OR THE MATTER MAY BE SENT BACK TO THE FILE OF THE LD. COMMISSIONER OF IN COME TAX (APPEALS) OR THE LD. ASSESSING OFFICER, SO THAT THE CLAIM OF THE ASSESSEE MAY BE EXAMINED. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.7,73,87 2/- WHILE FILING THE E-RETURN, UPLOADED WITH THE DETAIL S OF INCOME AND BROUGHT FORWARD LOSSES OF EARLIER YEARS BOTH UNABSORBED BUSINESS LOSS OF RS.4,51,906/- AND UNABSORBED DEPRECIATION OF RS.82,121/-. THE ASSESS EE HAS SET OFF TOTAL LOSS OF RS.5,34,027/- OF THE A.Y. 200 9-10 AGAINST THE PROFIT OF RS.7,73,873/- OF THE ASSESSME NT YEAR ITA NO.2334/MUM/2015 GLACIER REFRIGERATION PVT. LTD. 3 IN HAND BY CALCULATING THE TAX ON BALANCE INCOME. H OWEVER, WITHOUT GOING INTO MUCH DELIBERATION AND THE CLAIM OF THE ASSESSEE THAT THERE WAS A CLERICAL MISTAKE AND PROP ER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE, IN TH E INTEREST OF JUSTICE AND IN VIEW OF THE PRINCIPLE TH AT NO PERSON SHOULD BE CONDEMNED UNHEARD AND FURTHER WIT HOUT GOING INTO MERITS OF THE APPEAL, I AM OF THE VIEW T HAT EVEN AS PER MANDATE OF ARTICLE 265 OF CONSTITUTION OF IN DIA, ONLY DUE TAXES HAS TO BE LEVIED/COLLECTED, THEREFORE, TH IS APPEAL IS REMANDED BACK TO THE FILE OF THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) TO EXAMINE THE CLAIM OF THE AS SESSEE AND AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD BE DECIDED IN ACCORDANCE WITH LAW. THE ASSESSEE IS AT LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAI M. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSE ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 14/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 18/01/2016 ITA NO.2334/MUM/2015 GLACIER REFRIGERATION PVT. LTD. 4 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI